Felicia Zeah v. Loretta E. Lynch , 828 F.3d 699 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-2466
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Felicia Zeah
lllllllllllllllllllllPetitioner
v.
Loretta E. Lynch, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: March 17, 2016
Filed: July 8, 2016
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Before MURPHY, BEAM, and GRUENDER, Circuit Judges.
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BEAM, Circuit Judge.
Felicia Zeah petitions for review of the Board of Immigration Appeals' (BIA)
denial of her motion to reopen her removal proceedings to apply for asylum, alleging
that the BIA committed several legal errors and violated her due process rights. For
the reasons discussed below, we deny the petition.
I. BACKGROUND
Zeah is a native and citizen of Nigeria. She first entered the United States as
a nonimmigrant visitor in 1985. Zeah married James Wells in a civil ceremony in
1989, who then filed a Petition for Alien Relative (Form I-130) on her behalf.
However, the United States Citizenship and Immigration Services (USCIS) found that
Zeah's marriage to Wells was a sham marriage. In fact, the USCIS found that Zeah
was not divorced from her prior husband and thus, was not free to marry Wells. Zeah
has remained in the United States continuously since her entry in 1985, with the
exception of two trips to Nigeria in 1992 and 2001. In 2001 she was paroled into the
United States for a period not to exceed October 3, 2002. Zeah married Wilson Zeah
(Wilson) on April 2, 1999, and they have three United States citizen children
together. Wilson filed an immediate relative visa petition on behalf of Zeah on April
7, 1999. The USCIS denied this petition stating that "[s]ince Felicia has previously
entered into a sham marriage to obtain immigration benefits, no new petitions may
be approved."
On February 7, 2008, the Department of Homeland Security (DHS) issued Zeah
a Notice to Appear, commencing removal procedures for being present in the United
States without valid immigrant documentation in violation of § 212(a)(7)(A)(i)(I) of
the Immigration and Nationality Act (INA). Zeah admitted to the allegations,
conceded the charge, and designated Nigeria as her country for removal. She then
filed an application for cancellation of removal, which was denied on September 7,
2010. The immigration judge (IJ) found that no family member would suffer
"exceptional or extremely unusual hardship" if Zeah were removed and found
substantial evidence of Zeah's prior sham marriage. She was granted voluntary
departure in lieu of removal. Zeah appealed the IJ's decision, and on October 12,
2012, the BIA entered the final administrative decision, upholding the IJ's decision.
On March 6, 2014, this court denied Zeah's petition for review. Zeah v. Holder, 744
F.3d 577, 579 (8th Cir. 2014).
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On May 4, 2015, almost three years after the final administrative decision,
Zeah filed a motion to reopen her removal proceedings to seek asylum based on fear
of harm in Nigeria because of allegedly new, widespread violence from the terrorist
group Boko Haram. She also sought withholding of removal and relief under the
Convention Against Torture (CAT). She argued that "the dramatic and sudden
change in country conditions in Nigeria" because of Boko Haram allowed her to
reopen her case under 8 C.F.R. § 1003.2(c)(3)(ii). She alleged "past persecution as
a woman as well as [a] well-founded fear of future persecution as a woman and a
Christian due to the Boko Haram insurgence." As evidence of past persecution, Zeah
noted various forms of abuse, including female genital mutilation perpetrated by her
uncle. In support of her well-founded fear of future persecution argument, she stated
that many family members had been displaced by Boko Haram or were missing, the
group had seized many territories in Nigeria, and in April 2014, the group kidnaped
approximately 300 Nigerian schoolgirls. She also suggested that the BIA exercise
discretion and reopen her case due to her excellent behavior in the United States,
strong family ties, and minor immigration violations.
On June 9, 2015, the BIA denied Zeah's motion to reopen. It determined that
Zeah's motion was untimely because she did not qualify for an exception to the 90-
day filing deadline. Zeah had not "met her heavy burden of establishing a material
change in circumstances or conditions 'arising in the country of nationality' to excuse
the 90-day motion time limitation." The BIA also noted that Zeah wanted to reopen
her removal proceedings to claim asylum, which she should have raised in her first
removal hearing. The BIA took administrative notice of the Department of State's
2009 Country Report on Human Rights Practices - Nigeria (2009 country report),
which discussed atrocities committed by Boko Haram that occurred prior to Zeah's
2010 hearing, thus negating any allegation that country conditions had changed.
Additionally, the BIA held that Zeah could not establish a prima facie case for
asylum, as her fears were not specific to her, and there was insufficient evidence to
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show that the Nigerian government was unable or unwilling to protect her from Boko
Haram.
Zeah now appeals, arguing that the BIA (1) violated her due process rights by
taking administrative notice of the 2009 country report; (2) applied a standard other
than "material change" for excusing the 90-day motion to reopen time limitation; (3)
improperly required her to show why she could not relocate to a different part of
Nigeria to prove a prima facie asylum case; (4) improperly required her to show that
the Nigerian government was unwilling, not just unable, to protect her from Boko
Haram; (5) improperly used a standard other than "well-founded fear of future
persecution" in determining that she failed to prove a prima facie asylum case; and
(6) violated her due process rights by failing to consider the individualized evidence
she submitted.
II. DISCUSSION
We review the BIA's denial of a motion to reopen for an abuse of discretion.
Quinteros v. Holder, 707 F.3d 1006, 1009 (8th Cir. 2013). The BIA's decision will
be overturned for an abuse of discretion "where it gives no rational explanation for
its decision, departs from its established policies without explanation, relies on
impermissible factors or legal error, or ignores or distorts the record evidence." Id.(quoting Guled v. Mukasey, 515 F.3d 872, 882 (8th Cir. 2008)).
Generally, motions to reopen are disfavored. INS v. Abudu, 485 U.S. 94, 107
(1988). "There is a strong public interest in bringing litigation to a close as promptly
as is consistent with the interest in giving the adversaries a fair opportunity to develop
and present their respective cases." Id. Also, granting too many motions to reopen
subjects the court to "endless delay of deportation by aliens" who are financially able
to continue litigating. Poniman v. Gonzales, 481 F.3d 1008, 1011 (8th Cir. 2007)
(quoting Gebremaria v. Ashcroft, 378 F.3d 734, 737 (8th Cir. 2004)). A motion to
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reopen must "state the new facts that will be proven . . . and . . . be supported by
affidavits or other evidentiary material." 8 U.S.C. § 1229a(c)(7)(B) (emphasis
added). A movant may file only one motion to reopen, id. § 1229a(c)(7)(A), and the
motion must be filed within 90 days after the final administrative decision is entered.
Id. § 1229a (c)(7)(C)(i). If the movant is seeking a motion to reopen to be considered
for a grant of asylum because of "changed country conditions arising in the country
of nationality or the country to which removal has been ordered," however, there is
no time limit. Id. § 1229a(c)(7)(C)(ii). This exception only applies if evidence of the
changed country condition "is material and was not available and would not have
been discovered or presented at the previous proceeding." Id. Here, it is undisputed
that Zeah's motion to reopen was untimely. Zeah filed her motion to reopen on May
4, 2015, well over two years after the final administrative decision was entered on
October 12, 2012. However, Zeah argues that the BIA erred in several respects when
it held that she did not qualify for the asylum exception to the 90-day filing deadline.
First, Zeah argues that the BIA violated her due process rights by taking
administrative notice of facts contained in the 2009 country report. We disagree. In
determining whether there has been a material change in country conditions sufficient
to override the 90-day filing deadline for a motion to reopen, the BIA "compare[s] the
evidence of country conditions submitted with the motion [to reopen] to those that
existed at the time of the merits hearing below." In re S-Y-G, 24 I. & N. Dec. 247,
253 (BIA 2007). Thus, Zeah knew that the court would examine prior country
conditions in Nigeria. See Zhong Qin Zheng v. Mukasey, 523 F.3d 893, 896 (8th Cir.
2008) (stressing that there must be material evidence of an actual change in country
conditions). Moreover, "[w]e have approved the BIA's use of administrative notice
of changed conditions in an alien's home country," including facts contained in
country reports. Francois v. INS, 283 F.3d 926, 933 (8th Cir. 2002). Zeah claims that
the 2009 country report fails to show Boko Haram violence against women and
children, which the BIA relied upon when making its decision. However, the 2009
country report specifically states that Boko Haram, "an Islamic extremist group," was
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"forcibly holding women and children" and that there was an increasing amount of
"[v]iolence between Christians and Muslims." Nonetheless, even if Zeah's allegations
were correct, mere disagreement about the interpretation of evidence does not
constitute an abuse of discretion. See Vargas v. Holder, 567 F.3d 387, 391 (8th Cir.
2009). Zeah also claims that she did not have an opportunity to rebut the
administratively noticed facts contained in the 2009 country report. This argument,
however, is flawed because Zeah submitted the 2009 country report as part of a
supplemental exhibit in her removal proceedings, which refutes any claim that the
document was incorrect or subjected her to unfair surprise.
Second, Zeah argues that the BIA erred by applying a legal standard other than
"material change." She alleges that the BIA held that she was unable to show
changed country conditions because she "could not prove a novel, or completely new,
type of harm." Again, we disagree. To be excused from the 90-day filing deadline,
the movant must prove changed country conditions, not a change in personal
conditions. Zheng, 523 F.3d at 895. Also, as pertinent in this case, "evidence [that]
reflects conditions substantially similar to those that existed at the time of [the first]
hearing" does not show a change in country conditions. Id. Zeah's alleged past
persecution in the 1960's does not establish a material change in country conditions
in Nigeria in 2014. Her past persecution based on gender gave her the opportunity
to claim asylum when she first entered the United States in 1985 and again at her
removal hearing in 2010. Although helpful for a claim of asylum, the fact that she
may have suffered past persecution undermines her claim of changed country
conditions. Also, Zeah gives no reason for her failure to bring the asylum claim at
an earlier time. And, the BIA correctly stated that "motions to reopen are not vehicles
for presenting new allegations that could have been previously raised."
Zeah's claim of a material change in country conditions in Nigeria based on
Boko Haram also lacks merit. She argues that the kidnaping of approximately 300
Nigerian schoolgirls, an increase in murders, and the violent seizure of several parts
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of Nigeria are evidence of changed country conditions due to increased violence by
Boko Haram. However, as briefly mentioned above, Zeah failed to submit the
necessary pre-2014 evidence as a benchmark to prove there has been any change. See
id. at 896 (holding it "is not material evidence of changed circumstances when there
is no evidence of [prior country conditions]"). Moreover, Boko Haram has been
perpetrating violence against women and children since at least 2009, which was
prior to Zeah's removal proceedings. In fact, as the BIA noted, Zeah's evidence in
support of her motion to reopen states, "Boko Haram has existed since 2002 and has
long engaged in terrorism." The motion itself further states, "Since her filing with the
Immigration court, conditions in Ms. Zeah's home country of Nigeria have remained
appalling." This suggests no change in country conditions. Thus, the BIA applied
the correct standard, "material change," and did not abuse its discretion by holding
that Zeah failed to show a material change in country conditions in Nigeria.
III. CONCLUSION
Because we hold that Zeah's motion to reopen was untimely due to her inability
to show a material change in country conditions in Nigeria, which would have
excused her from the 90-day time limitation for filing the motion, we need not
address whether the BIA erred in determining she had not established a prima facie
case of asylum, the relief sought.1 Thus, we affirm the BIA's denial of Zeah's motion
to reopen and deny the petition for review on appeal.
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1
Zeah does not appeal the BIA's holding that she failed to "establish[] an
exceptional circumstance warranting sua sponte reopening" by the court.
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